BILL NUMBER: SB 1342	CHAPTERED  09/28/00

	CHAPTER   821
	FILED WITH SECRETARY OF STATE   SEPTEMBER 28, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 28, 2000
	PASSED THE SENATE   AUGUST 30, 2000
	PASSED THE ASSEMBLY   AUGUST 30, 2000
	AMENDED IN ASSEMBLY   AUGUST 30, 2000
	AMENDED IN ASSEMBLY   AUGUST 28, 2000
	AMENDED IN ASSEMBLY   AUGUST 14, 2000
	AMENDED IN ASSEMBLY   JUNE 27, 2000
	AMENDED IN ASSEMBLY   JUNE 13, 2000
	AMENDED IN SENATE   APRIL 25, 2000
	AMENDED IN SENATE   MARCH 30, 2000
	AMENDED IN SENATE   FEBRUARY 10, 2000

INTRODUCED BY   Senator Burton
   (Principal coauthor:  Assembly Members Baugh and Villaraigosa)
   (Coauthors:  Senators Alarcon, Alpert, Figueroa, Johnson, Lewis,
McPherson, Murray, Perata, Polanco, Solis, Speier, and Vasconcellos)
   (Coauthors:  Assembly Members Ackerman, Alquist, Bock, Campbell,
Cardenas, Cardoza, Cox, Dutra, Keeley, Knox, Kuehl, Leach, Longville,
Mazzoni, Migden, and Washington)

                        JANUARY 10, 2000

   An act to add Section 1405 to, and to add and repeal Section 1417
of, the Penal Code, relating to forensic testing.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1342, Burton.  Forensic testing:  post conviction.
   Existing law authorizes the defendant in a criminal case to file a
motion for a new trial upon specified grounds including, but not
limited to, the discovery of new evidence that is material to the
defendant, and which could not, with reasonable diligence, have been
discovered and produced at the trial.
   This bill would grant to a defendant who was convicted of a felony
and currently serving a term of imprisonment, the right to make a
written motion under specified conditions for the performance of
forensic DNA testing.  The bill would require that the motion include
an explanation of why the applicant's identity was or should have
been a significant issue in the case, how the requested DNA testing
would raise a reasonable probability that the verdict or sentence
would have been more favorable if the DNA testing had been available
at the trial resulting in the judgment of conviction, and a
reasonable attempt to identify the evidence to be tested and the type
of DNA testing sought.  The motion would also have to include the
results of any previous DNA tests and the court would be required to
order the party in possession of those results to provide access to
the reports, data and notes prepared in connection with the DNA tests
to all parties.  The bill would also provide that the cost of DNA
testing ordered under this act would be borne by either the state or
by the applicant if, in the interests of justice the applicant is not
indigent and possesses the ability to pay.
   The bill would also require, except as otherwise specified, the
appropriate governmental entity to preserve any biological material
secured in connection with a criminal case for the period of time
that any person remains incarcerated in connection with that case.
These provisions would remain in effect until January 1, 2003.  By
increasing the duties of local officials this bill would impose a
state-mandated local program.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1405 is added to the Penal Code, to read:
   1405.  (a) A person who was convicted of a felony and is
currently serving a term of imprisonment may make a written motion
before the trial court that entered the judgment of conviction in his
or her case, for performance of forensic deoxyribonucleic acid (DNA)
testing.
   (1) The motion shall be verified by the convicted person under
penalty  of perjury and shall do all of the following:
   (A) Explain why the identity of the perpetrator was, or should
have been, a significant issue in the case.
   (B) Explain in light of all the evidence, how the requested DNA
testing would raise a reasonable probability that the convicted
person's  verdict or sentence would be more favorable if the results
of DNA testing had been available at the time of conviction.
   (C) Make every reasonable attempt to identify both the evidence
that should be tested and the specific type of DNA testing sought.
   (2) Notice of the motion shall be served on the Attorney General,
the district attorney in the county of conviction, and, if known, the
governmental agency or laboratory holding the evidence sought to be
tested.  Responses, if any, shall be filed within 60 days of the date
on which the Attorney General and the district attorney are served
with the motion, unless a continuance is granted.
   (3) If any DNA or other biological evidence testing was conducted
previously by either the prosecution or defense, the results of that
testing shall be revealed in the motion for testing, if known.  If
evidence was subjected to DNA or other forensic testing previously by
either the prosecution or defense, the court shall order the
prosecution or defense to provide all parties and the court with
access to the laboratory reports, underlying data, and laboratory
notes prepared in connection with the DNA testing.
   (b) The court, in its discretion, may order a hearing on the
motion.  The motion shall be heard by the judge who conducted the
trial unless the presiding judge determines that judge is
unavailable.  Upon request of either party, the court may order, in
the interest of justice, that the convicted person be present at the
hearing of the motion.
   (c) The court shall appoint counsel for the convicted person who
brings a motion under this section if that person is indigent.
   (d) The court shall grant the motion for DNA testing if it
determines all of the following have been established:
   (1) The evidence to be tested is available and in a condition that
would permit the DNA testing that is requested in the motion.
   (2) The evidence to be tested has been subject to a chain of
custody sufficient to establish it has not been substituted, tampered
with, replaced or altered in any material aspect.
   (3) The identity of the perpetrator of the crime was, or should
have been, a significant issue in the case.
   (4) The convicted person has made a prima facie showing that the
evidence sought to be tested is material to the issue of the
convicted person's identity as the perpetrator of, or accomplice to,
the crime, special circumstance, or enhancement allegation that
resulted in the conviction or sentence.
   (5) The requested DNA testing results would raise a reasonable
probability that, in light of all the evidence, the convicted person'
s verdict or sentence would have been more favorable if the results
of DNA testing had been available at the time of conviction.  The
court in its discretion may consider any evidence whether or not it
was introduced at trial.
   (6) The evidence sought to be tested meets either of the following
conditions:
   (A) It was not tested previously.
   (B) It was tested previously, but the requested DNA test would
provide results that are reasonably more discriminating and probative
of the identity of the perpetrator or accomplice or have a
reasonable probability of contradicting prior test results.
   (7) The testing requested employs a method generally accepted
within the relevant scientific community.
   (8) The motion is not made solely for the purpose of delay.
   (e) If the court grants the motion for DNA testing, the court
order shall identify the specific evidence to be tested and the DNA
technology to be used.  The testing shall be conducted by a
laboratory mutually agreed upon by the district attorney in a
noncapital case, or the Attorney General in a capital case, and the
person filing the motion.  If the parties cannot agree, the court's
order shall designate the laboratory to conduct the testing  and
shall consider designating a laboratory accredited by the American
Society of Crime Laboratory Directors Laboratory Accreditation Board
(ASCLD/LAB).
   (f) The result of any testing ordered under this section shall be
fully disclosed to the person filing the motion, the district
attorney, and the Attorney General.  If requested by any party, the
court shall order production of the underlying laboratory data and
notes.
   (g) (1) The cost of DNA testing ordered under this section shall
be borne by the state or the applicant, as the court may order in the
interests of justice, if it is shown that the applicant is not
indigent and possesses the ability to pay.  However, the cost of any
additional testing to be conducted by the district attorney or
Attorney General shall not be borne by the convicted person.
   (2) In order to pay the state's share of any testing costs, the
laboratory designated in subdivision (e) shall present its bill for
services to the superior court for approval and payment.  It is the
intent of the Legislature to appropriate funds for this purpose in
the 2000-01 Budget Act.
   (h) An order granting or denying a motion for DNA testing under
this section shall not be appealable, and shall be subject to review
only through petition for writ of mandate or prohibition filed by the
person seeking DNA testing, the district attorney, or the Attorney
General.  Any such petition shall be filed within 20 days after the
court's order granting or denying the motion for DNA testing.  In a
noncapital case, the petition for writ of mandate or prohibition
shall be filed in the court of appeals.  In a capital case, the
petition shall be filed in the California Supreme Court.  The court
of appeals or California Supreme Court shall expedite its review of a
petition  for writ of mandate or prohibition filed under this
subdivision.
   (i) DNA testing ordered by the court pursuant to this section
shall be done as soon as practicable.  However, if the court finds
that a miscarriage of justice will otherwise occur and that it is
necessary in the interests of justice to give priority to the DNA
testing, a DNA laboratory  shall be required to give priority to the
DNA testing ordered pursuant to  this section over the laboratory's
other pending casework.
   (j) DNA profile information from biological samples taken from a
convicted person pursuant to a motion for postconviction DNA testing
is exempt from any law requiring disclosure of information to the
public.
   (k) The provisions of this section are severable.  If any
provision of this section or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
  SEC. 2.  Section 1417.9 is added to the Penal Code, to read:
   1417.9.  (a) Notwithstanding any other provision of law and
subject to subdivision (b), the appropriate governmental entity shall
retain any biological material secured in connection with a criminal
case for the period of time that any person remains incarcerated in
connection with that case.  The governmental entity shall have the
discretion to determine how the evidence is retained pursuant to this
section, provided that the evidence is retained in a condition
suitable for DNA  testing.
   (b) A governmental entity may dispose of biological material
before the expiration of the period of time described in subdivision
(a) if all of the conditions set forth below are met:
   (1) The governmental entity notifies all of the following persons
of the provisions of this section and of the intention of the
governmental entity to dispose of the material:  any person, who as a
result of a felony conviction in the case is currently serving a
term of imprisonment and who remains incarcerated in connection with
the case, any counsel of record, the public defender in the county of
conviction, the district attorney in the county of conviction, and
the Attorney General.
   (2) The notifying entity does not receive, within 90 days of
sending the notification, any of the following:
   (A) A motion filed pursuant to Section 1405, however, upon filing
of that application, the governmental entity shall retain the
material only until the time that the court's denial of the motion is
final.
   (B) A request under penalty of perjury that the material not be
destroyed or disposed of because the declarant will file within 180
days a motion for DNA testing pursuant to Section 1405 that is
followed  within 180 days by a motion for DNA testing pursuant to
Section 1405, unless a request for an extension is requested by the
convicted person and agreed to by the governmental entity in
possession of the evidence.
   (C) A declaration of innocence under penalty of perjury that has
been filed with the court within 180 days of the judgment of
conviction or July 1, 2001, whichever is later.  However, the court
shall permit the destruction of the evidence upon a showing that the
declaration is false or there is no issue of identity that would be
affected by additional testing.  The convicted person may be
cross-examined on the declaration at any hearing conducted under this
section or on an application by or on behalf of the convicted person
filed pursuant to Section 1405.
   (3) No other provision of law requires that biological evidence be
preserved or retained.
   (c) This section shall remain in effect only until January 1,
2003, and on that date is repealed unless a later enacted statute
that is enacted before January 1, 2003, deletes or extends that date.

